Debangsu Basak, J@mdashThe writ petitioner claims interest on delayed payment of gratuity.
2. Learned Government Pleader appearing for the State submits that the State is not liable to pay interest on the delay in payment of gratuity. He contends that, the issue of liability to pay interest for delayed payment of gratuity has to be seen in the context of the various provisions of the West Bengal Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 as well as the West Bengal Services (Revision of Pay and Allowance) Rules, 2009 (ROPA). He submits that, the revision of pension/family pension and gratuity payable to pensioners under the West Bengal Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981 does not allow payment of interest for delay in payment of pensionary benefit. Alternatively he submits that, the date for commencement of grant of interest should depend upon the fact scenario of each case and not May 19, 2009 as directed earlier by this Court. Referring to the various orders passed from time to time by this Court granting interest on delayed payment of gratuity he submits that, those orders did not take into consideration the provisions of ROPA 2009 and, therefore, such orders should be construed to be per incurium. On the issue of per incuriam he relies upon
3. The Government Pleader submits that, since the earlier orders directing payment should be construed to be per incurium, therefore, the principles of res judicata would not apply. On the issue of res judicata he relies upon
4. Elaborating on his submissions that the scheme of ROPA 2009 does not contemplate interest to be payable, he refers to the Notification bearing No. 46-SE (B)/5B-1/2009 dated February 27, 2009. He refers to paragraphs 1, 3, 5, 6, 12 and 15 thereof. He submits that, the Government Order dated February 27, 2009 does not speak of payment of interest in case of delay in payment of gratuity. In fact, the scheme contemplates staggered release of salary. He refers to the option forms given in the scheme. He submits that, the option forms are required to be filled up by the employee concerned. Till such time the option form is filled up and option exercised by the teacher concerned, the State is not in a position to disburse gratuity. Consequently, the delay, if any, on the part of the employee concerned should not be foisted on the State. The Government Pleader refers to the Government Order bearing No. 74-SE (B)/1 M-4/2009 dated May 19, 2009 and submits that, the same is prospective in operation. Paragraphs C and D speaks of gratuity. Referring to the Government Order bearing No. 88-SE (B) dated May 26, 1998 he contends that, the Government has 24 months from May 19, 2009 to make the payment. Therefore, till May 18, 2011 the State should not be asked to pay any interest in respect of payments made upto such date.
5. On behalf of the writ petitioner it is contended that, the issues sought to be agitated by the learned Government Pleader were raised on behalf of the State in M.A.T. No. 1118 of 2013. In this regard the stay petition of M.A.T. No. 1118 of 2013 is relied upon. Various paragraphs of such stay petition have been placed in support of the contention that, the points urged on behalf of the State in the present writ petition were urged earlier. Such contentions were given up in such appeal. Such appeal was disposed of by the Order dated August 14, 2013. There were three appeals by the State on the question of interest being payable for delay in payment of gratuity. The Division Bench has found the State liable to pay interest for delay in payment of gratuity by the orders all dated August 14, 2013 disposing of those three appeals. These orders have been accepted on behalf of the State not only in respect of the matters in which they were passed but also generally for all teachers similarly situate as would appear from the Government Order bearing No. 1259-SE (Law)/SL/5S-493/2013 dated October 21, 2013. By this Circular the State has accepted its liability to pay interest for delay.
6. It is contended that, pension includes gratuity. Gratuity has not been spelt out in ROPA 2009. The ceiling limit of gratuity has been increased from Rs. 2,50,000/- to Rs. 5,00,000/- by the ROPA 2009. The revised ceiling limit was introduced on May 19, 2009 by the Government Order bearing No. 74-SE (B)/1 M-4/2009 dated May 19, 2009. Referring to the Government Order bearing No. 88-SE (B) dated May 26, 1998 it is submitted that, the various clauses therein speak of prompt and expeditious payment of gratuity to be made.
7. It is contended that, in the clarification of the Joint Director of Treasury, West Bengal dated June 25, 2012 addressed to the Treasury Officer the Government has accepted its liability to pay interest on delay. This writing dated June 25, 2012 was placed before the Division Bench passing the Order dated August 14, 2013.
8. Relying upon
9. Reliance has also been placed on
10. Considering the rival contentions of the parties the issues that arise for consideration in the present writ petition are as follows:--
"(i) Whether interest is payable by the State on account of delay in payment of gratuity to a retired teacher covered under ROPA 2009?
(ii) If the answer to the first issue is in the affirmative then what would be the date of commencement of interest?"
11. Pension and gratuity are not bounty to be distributed by the Government to its employees on retirement. The Courts have consistently held that, pension and gratuity are valuable rights and properties of an employee. Any culpable delay in settlement and disbursement thereof must be visited with the penalty of payment of interest at the current market rate till actual payment. In this regard reference can be made to
12. It appears from the materials made available that, the State was vexed with the problem of delay in payment of the pension and gratuity for a considerable period of time. In order to address such problem the State had issued a Government Order bearing No. 88-SE (B) dated May 26, 1998. This Government Order lays down an elaborate procedure to be followed by the authorities for settlement pensionary claims of the employees of West Bengal Recognized Non-Government Educational Institutions with a view to hand over a copy of the pension payment order including gratuity and commuted value of pension where applicable on the date of superannuation of an employee as defined in paragraph 5(k) of the West Bengal Recognized Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. This Government Order specifies that failure to comply with the provisions stated therein by any concerned authority would be viewed seriously and would make such authority liable for disciplinary action. It goes on to say that the Head of the Institution, Sub-Inspector of Schools (Circle), Pension Sanctioning Authority, Accounts Officer (Finance) amongst others would be held personally liable for non-compliance of the procedure required to be followed by them for payment of pension and other benefits.
13. The State Government had constituted a Pay Commission whose terms of reference included the examination of structure of emoluments and conditions of service of teaching and non-teaching staff of Government sponsored or aided schools. The Pay Commission had made several recommendations. After considering the recommendations of the Pay Commission, the State had issued a Government Order bearing No. 46-SE dated February 27, 2009. By such Government Order dated February 27, 2009 the State had revised the scales of pay and other conditions of service of the employees as laid down therein. By a Government Order bearing No. 74-SE dated May 19, 2009 the State had revised the pension/family pension, gratuity and commutation of pension post January 1, 2006, for pensioners under the West Bengal West Bengal Recognized Non-Government Aided Educational Institution Employees (Death-cum-Retirement Benefit) Scheme, 1981. This Government Order had specified that consequent to revision of pay structure by Government Order bearing No. 46-SE the pension receivable by teachers covered by the Scheme of 1981 would be determined as laid down therein.
14. The three Government orders referred to above do not expressly provide for payment of interest. At the same time none of these three Government Orders prohibit award of interest on delay in payment. On a large number of writ petitions seeking interest for delay in payment, this Court has held that, interest is payable on delay in payment of gratuity. One of such writ petitions was W.P. No. 11189(W) of 2013. The same was disposed of by an Order dated April 18, 2013 directing the authorities to pay interest on the revised gratuity amount for the period from the date of retirement of the writ petitioner upto the date of actual payment. An appeal was carried by the State therefrom being M.A.T. No. 1118 of 2013. Such appeal was disposed of by the Order dated August 14, 2013 allowing interest from May 19, 2009 and not the date of retirement of a teacher as ROPA, 2009 was given effect to from such date.
15. By the Order dated August 14, 2013 the Division Bench had varied the date of commencement of interest in respect of a teacher who had retired prior to May 19, 2009 and covered by ROPA, 2009. The order of the Single Judge awarding interest for delay in payment of gratuity was not interfered with, despite the State taking the specific ground in the stay petition of the appeal that no interest is payable on delay in payment of gratuity.
16. The State has accepted this Order dated August 14, 2013 and has acted thereon. The State has issued a Circular bearing No. 1259-SE dated October 21, 2013 requesting all concerned to follow the guidelines/directions contained in the Order dated August 14, 2013 passed in M.A.T. No. 1118 of 2013, M.A.T. No. 1119 of 2013 and M.A.T. No. 1120 of 2013.
17. Nearly two years down the line of the Order dated August 14, 2013 of the Division Bench and the Circular dated October 21, 2013 the State through the Government Pleader seeks to contend otherwise. The Circular dated October 21, 2013 has not been withdrawn by the State.
18. In Sri Sheo Ram Giri (supra) the Division Bench of this Court relying upon a decision of the Supreme Court reported in All India Reporter 2007 Supreme Court page 1958 (Aloke Shanker Pandey v. Union of India & Ors.) has held that, interest is not a penalty or a punishment at all. It is the normal accretion of capital. The Division Bench had proceeded to uphold the order of the Single Bench granting interest on delayed payment of retirement benefits to a Head Master of a school.
19. In S.K. Dua (supra) the Supreme Court has held that, if there is a statutory rule occupying the field with regard to award of interest on retirement benefits, such rule would prevail. If there are administrative instructions, guidelines or norms prescribed for such purpose, an employee may claim benefit of interest on such basis. However, in the absence of statutory rules, administrative instructions or guidelines an employee could claim interest under Part III of the Constitution relying on Articles 14, 19 and 21 of the Constitution.
20. The Government Pleader has taken pains to point out that such observations made in S.K. Dua (supra) are stated to be prima facie by the Supreme Court itself. He has also taken pains to draw the attention of the Court that the Supreme Court has clarified that such judgment may not be understood to be an opinion on the merits of the matter one way or the other. In my view, consequent to a prima facie view of the maintainability of the writ petition being taken their Lordships did not pronounce on its merits. However, the law taken note of by the Hon''ble Supreme Court in arriving at such finding could not be said to be prima facie. S.K. Dua (supra) has been followed by the Division Bench of this Court in Dayaram Barma (supra).
21. Pension and gratuity have been considered by the Courts as properties of the employee. In cases where there is culpable delay in making over such property to the rightful owner, such delay would attract award of commensurate compensation by way of interest to offset the deprivation. Interest can be granted as a natural accretion to capital.
22. In the present case, the three Government Orders referred to above do not speak of award of interest on account of delay in payment of pension and gratuity. They do not at the same time prohibit award of interest. The Government Pleader has not placed any statute or a statutory rule prohibiting award of interest. The interpretations of the Government pleader with regard to these three Government Orders, therefore, cannot be accepted. Moreover, the Government Order bearing No. 1259-SE (Law)/SL/5S-493/2013 dated October 21, 2013 directs all concerned to follow the directions contained in the judgment rendered in M.A.T. No. 1118 of 2013, M.A.T. No. 1119 of 2013 and M.A.T. No. 1120 of 2013 for payment of interest on account of delay in disbursement of pension and gratuity. The State has, therefore, accepted that a retired teacher is entitled to interest on delayed payment of pensionary benefits under ROPA, 2009.
23. A considerable time has elapsed since the Order dated August 14, 2013 of the Division Bench and the Government Order dated October 21, 2013. Subsequent thereto, the retired teachers who had approached Court for interest were awarded interest for delayed payment. The writ petitioner is similarly situate as that of the writ petitioner in M.A.T. No. 1118 of 2013 and other writ petitioners who were allowed interest for delayed payment of gratuity subsequently. Such being the position, it would be improper to allow the State to approbate and reprobate and to take a stand contrary to its earlier stand as well as its declared policy as noted in the Government Order dated October 21, 2013.
24. The State has not been able to substantiate any law prohibiting grant of interest on delayed payment of gratuity which the Division Bench in M.A.T. No. 1118 of 2013 had failed to take notice of. The law is quite to the contrary. The Order passed in M.A.T. No. 1118 of 2013, therefore, cannot be said to be per incurium. The ratio laid down in Central Board of Dawoodi Bohra Community & Anr. (supra) and A.R. Antulay (supra) on per incuriam are not attracted to the facts of this case. Similarly, the ratio laid down in Subramanian Swamy & Ors. (supra) and Hari Chand & Ors. (supra) does not assist the State.
25. In the facts of this case I do not find any conflict between law and equity. The ratio laid down in Vijay Narayan Thatte & Ors. (supra) in this regard is also not attracted in the facts of this case.
26. The first issue is, therefore, answered in the affirmative in favour of the writ petitioner and against the State.
27. The State has accepted the Order dated August 14, 2013 passed in M.A.T. No. 1118 of 2013 by the Division Bench and has acted thereon as would appear from its conduct subsequent thereto in issuing the Circular dated October 21, 2013 and in paying interest to similarly situate persons.
28. The second issue is answered by holding that the date of commencement of interest under ROPA, 2009 would be May 19, 2009.
29. In the present case, the teacher had superannuated from service on May 31, 2008. The pension payment order as per ROPA 1998 was issued in favour of the writ petitioner on September 11, 2009. The revised pension payment order in terms of ROPA 2009 was issued on July 8, 2013. The pensionary benefit was disbursed on October 9, 2013.
30. The Government Pleader did not address me as to why there was a delay between the date of revised pension payment order and the disbursement of the same mentioned therein. The contention of the Government Pleader that, the State requires some time to implement ROPA 2009 is without any substance. The State being aware of the consequences of ROPA 2009 has given effect thereto on May 19, 2009. The State cannot now be allowed to contend that it requires time to react to the ROPA 2009. Moreover, the delay between the date of issuance of the revised pension payment order and disbursement cannot be justified under any circumstances.
31. In such circumstances and in view of the delay in payment of gratuity, I direct the Director of Pension, Provident Fund and Group Insurance, Government of West Bengal as also the concerned Treasury Officer to pay interest on the amount mentioned in the Pension Payment Order at the rate of 8% per annum calculated on and from May 19, 2009 till the date of disbursement of the gratuity amount to the writ petitioner within a period of 8 (eight) weeks from the date of communication of an authenticated copy of this order upon the respondent authorities.
32. With the aforesaid directions, W.P. No. 1848(W) of 2015 is disposed of.
33. There will be no order as to costs.
34. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
